DBA insurance could expand the use of damages-based agreements in commercial litigation, with law ﬁrms able to boost their proﬁt while limiting their exposure

Damages-based agreements (DBAs) were introduced as part of the package of Jackson reforms in 2013. However, while 2016 saw several large law ﬁrms running some sizeable DBA cases, take-up by commercial litigators generally has been limited, primarily due to concerns about the drafting of the DBA Regulations and, in particular, the inability to offer ‘hybrid DBAs’.

While law ﬁrms are understandably attracted to the potentially large upside available from contingency fees, many are concerned about the requirement that the DBA must be ‘all or nothing’. Unlike their US counterparts, lawyers in England and Wales do not have the ﬂexibility to offer a hybrid contingency fee, whereby they are paid some element of their fees irrespective of the outcome of the case. A partial DBA would provide a balance between taking risk and sharing in some of the upside rewards whilst safeguarding some income for the ﬁrm.

Following a successful trial with several top-50 law ﬁrms, TheJudge has developed a product designed speciﬁcally for commercial disputes teams which enables law ﬁrms to share the fee risk they incur under a DBA with the insurance market. While the term ‘insurance’ rarely conjures excitement, in this instance it could be a key facilitator to large increased proﬁts.

DBA insurance explained

DBA insurance is a policy taken out by the law ﬁrm (not the client) to cover a portion of the ﬁrm’s fee risk under the DBA.

As between the law ﬁrm and the client, the arrangement is an all or nothing DBA. However, if the case is lost or a judgement cannot be enforced, the law ﬁrm can make a claim under the policy to be reimbursed up to an agreed level of hourly fees incurred. Policies will typically cover around 50 per cent of the fees to ensure some risk alignment between the ﬁrm and insurer.

How is the premium paid?

The premium under a DBA policy is contingent upon the law ﬁrm collecting the contingency fee and is only paid out of the contingency fee recovered. If the case is lost the law ﬁrm pays no premium and the insurer reimburses the ﬁrm for the insured fees.

Why is this so signiﬁcant?

Many UK lawyers will have encountered good commercial cases that would have been ideally suited for a contingency fee.

However, whilst a case may have excellent merits and be worth substantial damages, the economic reality of taking the full fee risk for two or three years is often too much of a hurdle for the law ﬁrm’s alternative fees committee. In other instances, the ﬁrm may already have reached its maximum contingent fee exposure and be unwilling to take on more.

With prospective (and even existing) clients increasingly tendering opportunities, having the ﬂexibility of being able to offer alternative options to the pure billable hour is becoming increasingly signiﬁcant.

We are seeing more examples of traditionally conservative law ﬁrms losing opportunities to ﬁrms who have more ﬂexibility over their billing arrangements. The ﬁrm’s ﬂexibility might only extend as far as providing discounts in the hourly rate to attract work, but this approach may not be sustainable in the long term. A race to the bottom on hourly rates may not be in the client’s interests if it means compromising on quality.

Larger firms may also be mindful of increased competition from mid-sized ﬁrms and boutiques, perhaps considered by Chambers & Partners as being ‘band two’ ﬁrms, but who have contingency cases on their books whereby the ﬁrm’s entitlement could be 35 per cent of the damages across a pool of cases worth potentially hundreds of millions.

There are many examples of smaller US law ﬁrms who became signiﬁcant market players on the back of some hugely successful contingency cases. Many of the partners at such ﬁrms had to take on signiﬁcant personal risk in the early stages, but have now amassed substantial war chests from which they can ﬁnance future contingency fee cases.

The opportunity now available to law ﬁrms in England and Wales is potentially enormous. There is no need to ‘bet the ﬁrm’ like those US ﬁrms in the above example, nor is there a need to have a huge war chest to underpin the expansion of a contingency book. The insurers with whom TheJudge has secured support to write DBA policies are the war chest. These insurers are all large international insurance carriers, ready and waiting to underwrite hundreds of millions of pounds of capacity by sharing the fee risk with law ﬁrms who have access to good cases.

No-one is suggesting that DBA insurance will give rise to the rampant use of DBAs in the UK commercial litigation market. Firms needs to manage their cash ﬂow and therefore reach a sensible balance between billable hour work and alternative fees.

However, by cherry-picking the cases the ﬁrm believes in and laying off a portion of the fee risk, the law ﬁrm could off set much, if not all, the discounts provided on their billable hour retainers, boosting realisation returns across the department or ﬁrm.

A solution to the age-old dilemma – how to account for contingent WIP

Because the insurer is agreeing to insure a ﬁxed portion of the WIP incurred under a DBA, the ﬁrm has the ﬁnancial certainty that it will realise at least (typically) 50 per cent of the fees incurred. This provides ﬁnancial controllers with far greater budget certainty when forecasting revenues.

Taking a leaf out of the litigation funding book

The third-party litigation funding market has seen exponential growth in recent years. Standing at an estimated $4bn and growing, the industry’s global expansion represents the decade’s most signiﬁcant development in how legal disputes are ﬁnanced.

Most of these funds are highly sophisticated investors, with a singular outlook for maximising investment returns. Litigation is treated as just another asset class. It ought not to come as any surprise therefore that many of these funds will have an insurance arrangement behind the scenes to mitigate their capital risk.

DBA insurance effectively allows the law ﬁrm to do the same thing, mitigating downside risk whilst collecting substantial upside in the event of success.

Portfolio or individual risk cover?

Litigation ﬁnance or DBA insurance? Like funders, DBA insurers can provide cover on a case-by-case or a portfolio basis. Funders are increasingly promoting the viability of portfolio ﬁnancing to law ﬁrms, which is beneﬁcial for ﬁrms seeking to monetise and/or develop their alternative fee book with an injection of positive cashﬂow.

DBA insurance on the other hand, provides a different mechanism to hedge the risk. Rather than provide the interim cashﬂow, the insurer provides an indemnity to reimburse the fees incurred if the case is lost. Quid pro quo, the insurer does not charge anywhere near the level of return charged by funders.

This means that if a contingency case is successful, the law ﬁrm keeps the lion’s share of the proﬁt. Both models provide advantages.

Which of these is of greater appeal might be driven by the ﬁrm’s cash reserves. If the ﬁrm can carry the cashﬂow for the duration of the case, the DBA insurance model is likely to lead to substantially higher net returns to the ﬁ rm. On the other hand, if the ﬁrm does not have such cash reserves the funding-led model will be of greater applicability, but the law ﬁrm must cede a much larger share of the contingency fee recovered to the funder.

That said, the two products need not be mutually exclusive. The ﬁrm could have the beneﬁt of DBA insurance and still arranging funding to finance the disbursements.

DBA insurance represents another key development in the litigation risk transfer market and one speciﬁcally developed to aid law ﬁrms.

With the ever-growing mix of products and suppliers, commercial litigation lawyers in England and Wales who have their ﬁnger on the pulse have much to look forward to; perhaps insurance can be exciting after all.

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